In a judgment delivered last week, the Supreme Court observed that apart from a cisgender woman, pregnancy can also be experienced by non-binary people and transgender men, among other gender identities [A (Mother of X) v. State of Maharashtra and Another].While adjudicating a matter pertaining to termination of pregnancy of a 14-year-old minor girl, a Bench of Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra issued a clarification on why it used the term 'pregnant person' instead of 'pregnant woman'."We use the term ‘pregnant person’ and recognize that in addition to cisgender women, pregnancy can also be experienced by some non-binary people and transgender men among other gender identities," the Court stated in a footnote.The minor girl in this case became pregnant after she was sexually assaulted. A medical board had opined that she was physically and mentally fit for termination of pregnancy, subject to the permission of the High Court. By the time she had approached the Bombay High Court seeking termination, she was over 27 weeks pregnant.In another clarificatory opinion, without examining the girl, the medical board denied the termination of pregnancy on the ground of the gestational age of the foetus and that there were no congenital abnormalities in the foetus. The High Court dismissed the termination plea by relying on the clarificatory opinion.On appeal, the Supreme Court directed the medical board to re-examine the pregnancy of the girl. In its report, the board approved of the termination of the foetus and said that continuation of pregnancy will negatively impact the physical and mental well-being of the girl. Accordingly, on April 22, the Supreme Court had allowed the termination.However, by the time the parents of the girl arrived at a decision, the final conclusion which was reached was that the health of the minor girl was at high stake now due to the over 30-weeks pregnancy. Considering the parents' interest for safeguarding the health of their daughter as well as the minor's intention of giving birth to the foetus and then giving it for adoption, the top court recalled its April 22 order.The Court also highlighted that the clarificatory opinion of the board before the High Court failed to form an opinion on the impact of the pregnancy on the physical and mental health of the pregnant person, as required under the Medical Termination of Pregnancy Act, 1971 (MTP Act)."...the court relies on the opinion of the medical board constituted under the MTP Act for their medical expertise. The court would thereafter apply their judicial mind to the opinion of the medical board. Therefore, the medical board cannot merely state that the grounds under Section 3(2-B) of the MTP Act are not met. The exercise of the jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a medical board must examine the pregnant person and opine on the aspect of the risk to their physical and mental health."In this light, the Court issued the following directions to medical boards:(i) The MTP Act protects the practitioners and the medical boards when they form an opinion in good faith as to the termination of pregnancy;(ii) The medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) MTP Act but must also evaluate the physical and emotional well being of the pregnant person in terms of the judgment;(iii) When issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances; and(iv) The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion.Advocate-on-Record Bharat Tyagi, Advocates Shantanu M Adkar and Mustafa A Khan appeared for the appellant.Additional Solicitor General Aishwarya Bhati, Advocate-on-Record Aaditya Aniruddha Pande and Advocates Akshaja Singh, Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S Phanse, Adarsh Dubey and Yamini Singh appeared for the respondents.
TAGS: Supreme Court pregnancy non-binary transgender gender identities A (Mother of X) v. State of Maharashtra Chief Justice DY Chandrachud
